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Privacy v. Public Access in the Emerald City

Submitted by Bryce Newell on Mon, 04/16/2012 - 15:06

For the past few years here in Seattle, a fascinating debate has been brewing about the balance between government
transparency and citizens' privacy, particularly at the intersection of the state
Public Records Act and the state Privacy Act.

The current controversy involves
a lawsuit for declaratory relief
filed in January by the City of Seattle against local
attorney James Egan, after he submitted a public records request for 36 Seattle Police
Department dash-cam videos (see the complaint here). Egan requested the videos from the SPD under the Washington Public Records Act in relation to his representation of clients with misconduct claims against the police. (Egan has publicly posted prior
videos that he received from the SPD under
earlier Public Records Act. The 36 videos at issue in the new request don’t
necessarily relate to police interactions with Egan’s clients, but rather to
the officers involved in the earlier incidents.)

The city refused to produce the videos, citing a potential conflict with the state’s
Privacy Act and the department's concerns over potential liability for turning over videos that might violate the privacy of the
individuals depicted in the footage. Days later, Egan filed a second request for the
video footage, this time requesting the visual footage only, without audio, which was also rejected. He has also moved to strike the City’s claims under the state anti-SLAPP
statute.

This
whole controversy is especially interesting to me as a researcher interested in
government transparency and as a supporter of proper policing. A close reading of the statutes at issue is enlightening.

Washington's Public
Records Act heavily favors public disclosure, but City Attorney Pete Holmes is
concerned that one provision of the Privacy Act, RCW 9.73.090(1)(c), limits the city’s ability to disclose the videos to
anyone except the individuals involved in the recorded incidents. (Holmes
recently posted his thoughtful take on the issues here, and I applaud his willingness to discuss the matter
publicly.) The provision of the Privacy Act that most concerns the city reads
in part:

No sound or video
recording made under this subsection [which allows police to record dash-cam
video] may be duplicated and made available to the public by a law enforcement
agency subject to this section until final disposition of any criminal or
civil litigation which arises from the event or events which were recorded.
(emphasis added)

Interestingly, another lawsuit has also addressed whether the SPD may retain dash-cam videos under the Privacy Act, and a decision on April 11 may give a glimpse into the future of Egan's case. Last year, Seattle-based KOMO 4 News also filed a lawsuit against the city for refusing to release dash-cam videos to the station’s investigators, after allegations that the city was routinely denying all public records requests for dash-cam footage. On Wednesday, KOMO News announced that a King County judge had ruled in their case that the SPD could legitimately withhold the video for three years, but fined the city for not producing log and database information. As a result, despite reports that indicate that the SPD does maintain videos related to pending or on-going litigation, the decision in the KOMO v. Seattle case fuels Egan's worries that the SPD dash-cam video can be deleted from the department's system before it is ever subject to a public records request.

The Privacy Act provision on its face
does appear to explicitly limit the SPD’s ability to release the footage.
However, the conflict of laws provision of the Public Records Act makes
broad and sweeping claims to trump conflicting laws (including, presumably, the
Privacy Act). That provision, RCW 42.56.030,
states:

The people of this state do
not yield their sovereignty to the agencies that serve them. The people, in
delegating authority, do not give their public servants the right to decide
what is good for the people to know and what is not good for them to know....
This chapter shall be liberally construed and its exemptions narrowly construed
to promote this public policy and to assure that the public interest will be
fully protected. In the event of conflict between the provisions of this
chapter and any other act, the provisions of this chapter shall govern. (emphasis added)

The conflict between the Public Records Act and the Privacy Act is particularly alarming because the United States Department of Justice
recently concluded that the SPD has, over the past few years, engaged in “a
pattern or practice of constitutional violations regarding the use of force
that result from structural problems, as well as serious concerns about biased
policing.” The DOJ report, released on Dec. 16, 2011, is available here.

Interestingly, as mentioned above, the Egan and Komo cases aren’t the
only recent cases where the SPD has attempted to withhold dash-camera video
under this interpretation of the Privacy Act – although it has also continued
to release footage in some instances (including the prior requests by Egan
himself, noted above), displaying some inconsistency in enforcing the laws at issue. It’s also interesting to note
that similar efforts to restrict access to police footage have been cropping up in other states as well. The
Ohio legislature is currently considering Senate Bill
226 (official analysis here), which would exempt visual recordings that depict the
killing of a police officer from public records requests. This bill is
aimed at only a very narrow swath of all police footage, but it
presents another attempt by state governments to limit the availability of
police video from citizen review on privacy grounds.

These developments demonstrate some of the potential
conflicts that exist between open government ideals and law enforcement
concerns for public policing. This
conflict has also shown its face in the context of public agencies attempting
to prohibit citizens from recording police conduct in public. Citizen video as a tool for oversight of
police activity in public is a frequent topic on this blog (see here, here, and here for examples).

The ever expanding range of issues
associated with recording police in public, or requesting such videos under
various public record acts, has generated some quite fascinating developments.
In one such case that has received quite a bit of attention, Glik v.
Cunniffe, 655 F.3d 78 (2011), also see posts by Jeffrey Hermes here and Timothy Lamoureux here, the City of Boston has recently agreed to pay Simon Glik $170,000 in settlement of his civil rights case after the First
Circuit’s strongly worded decision in favor the First Amendment right to film
police officers in public spaces last summer. Apparently, the City of Boston has
now also produced a training video that instructs officers to refrain from
arresting citizens openly recording them in public. It will be
fascinating to see how the First Circuit decision will be
treated in other circuits moving forward.

Despite the decision in Glik, recording officers in public
remains potentially prohibited in some parts of the country by local
eavesdropping and wiretapping statutes and, surprisingly, filing a public
records request in Seattle might get you on the receiving end of a lawsuit. We are in for an interesting ride over the
next few months as we see how Seattle v. Egan gets decided and watch the fallout
from the Glik v. Cunniffe decision
around the country.

Bryce Newell is currently a Ph.D. student at the University of
Washington's Information School and a Graduate Fellow of the Comparative
Law & Society Studies (CLASS) Center. He is also a member of the
California State Bar (inactive) and is currently producing, directing, and editing a documentary film about humanitarian response to migrant deaths along the U.S.-Mexico border. He is a graduate of UC Davis School of Law. Nothing in this post should be construed as legal advice, but merely as the thoughts of a budding academic researcher.

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